01963640
10-08-1998
Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Charles R. Rosenbloom v. Department of Veterans Affairs
01963640
October 8, 1998
Charles R. Rosenbloom,
Appellant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01963640
Agency No. 95-0903
EEOC Hearing No. 260-95-7128x
DECISION
On April 2, 1996, the appellant timely appealed the agency's final
decision (FAD) concluding that he had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e et seq. In his complaint, appellant alleged that he was
discriminated against on the basis of his sex (male) when he was sexually
harassed by his second level supervisor and his co-workers mocked and
sexually teased him; and that his second level supervisor retaliated
against him when he objected to her alleged sexually inappropriate
behavior. The appeal is accepted in accordance with the provisions of
EEOC Order No. 960.001.
At the time of the alleged discrimination, the appellant was employed as
a Cemetery Caretaker at the National Cemetery in Ft. Snelling, Minnesota.
He filed the instant complaint in July 1994. After the agency completed
the investigation of the complaint, the appellant requested a hearing
before an EEOC Administrative Judge (AJ). On January 16, 1996, the AJ
issued a recommended decision finding no discrimination. On February 27,
1996, the agency issued a FAD adopting the AJ's recommended decision.
It is from this agency decision that the appellant now appeals.
Appellant's counsel did not submit any contentions on appeal.
The AJ found that the appellant had a friendly relationship with his
second level supervisor (S2). She gave appellant rides home, picked
him up in the agency vehicle more than the other employees, invited
him to listen to music in her car, and brought him a Wizard of Oz tape
for his children. They discussed personal problems with each other.
She told him she was lonely and overweight, asked him about where
to socialize, what he did the previous night, which movies he liked,
and she brought him food. Their relationship was unusually friendly.
Appellant's co-workers perceived that the appellant was getting a more
favorable treatment because of his personal relationship with S2, and
they joked about it with him and told him that he would become a foreman
if he took S2 to bed.
The relationship between appellant and S2 soured around March 1994.
They gave different reasons for the change in relationship. Appellant
thought that their relationship soured after he called S2 a "fat b----,"
and when he refused to snitch on co-workers and told his first level
supervisor (S1) that he was not interested in S2. S2 claimed that their
relationship changed after a misunderstanding with appellant regarding
leave approval in March 1994. Appellant claimed that, after their
relationship soured, S2 fined him for a tractor accident, wrote him up
for being late and stopped giving him overtime.
The AJ found no credible evidence to support the appellant's allegation
that S2 subjected him to sexual harassment. The AJ found no evidence
that the submission to or rejection of alleged sexual conduct formed
the basis of any employment decisions affecting the appellant. The AJ
found no evidence showing that S2 made any unwelcome sexual advances or
requests for sexual favors, or that she engaged in any verbal or physical
conduct of a sexual nature. The AJ found that the personal relationship
between the two did not amount to actions or conduct of a sexual nature.
The AJ credited the appellant's testimony that S2 once touched his arm
and shoulder and sat on the arm of his chair. Even considering that
this conduct was of a sexual nature, the AJ found that these isolated
incidents failed to establish that the appellant was subjected to a severe
or pervasive sexually hostile work environment. Further, the AJ found
that although the appellant felt bad and embarrassed when his co-workers
joked about his personal relationship with S2 and sometimes stopped
talking when he walked into the lunch room, she found no evidence that
such behavior by the co-workers was pervasive or hostile. She found that
the appellant and the co-workers in fact laughed about the relationship.
Lastly, the AJ found that the appellant's main contention was that S2
began to retaliate against him after he made the "fat b----" comment.
The AJ found that not only did the appellant not engage in any protected
activity when he called S2 a "fat b----," but also there was evidence
that the appellant had been progressively disciplined even before
his relationship with S2 deteriorated.<1> The AJ, therefore, found no
evidence to support the appellant's allegation of retaliation.
After a careful review of the entire record, we find that the AJ's
recommended decision sets forth the relevant facts and properly analyzes
the appropriate regulations, policies and laws. Based on the evidence
of record, we discern no basis to disturb the AJ's findings of no
discrimination.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. If you file a civil
action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON
WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT
PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may
result in the dismissal of your case in court. "Agency" or "department"
means the national organization, and not the local office, facility or
department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct 8, 1998
DATE Frances M. Hart,
Executive Officer,
Executive Secretariat
1 The AJ had previously issued a decision regarding another complaint
by the appellant in which she had addressed the appellant's record of
past disciplinary problems. For a description of those AJ findings,
see our decision in EEOC Appeal No. 01954497 (December 22, 1997).